Legal Citations on Trial In Innovation v. Tradition

By WILLIAM GLABERSON

Published: July 8, 2001

For a couple of centuries, judges and lawyers have been including arcane numbers smack in the middle of their writing. They call them sentence citations, see, e.g., Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000).

Lots of people call them annoying. Now, at the prompting of one of the country's leading authorities on legal writing, lawyers and judges are joining the ranks of the complainers. In court opinions and legal briefs, they are flouting convention by tucking those numbers into footnotes.

In the process, they are irritating some of their colleagues and changing the look of legal documents from coast to coast. They say they are also taking an important step toward making the law slightly more comprehensible to people who have not spent three years in law school.

But the defenders of legal tradition say the rebels are ruining a superior system of legal citation with unorthodox ideas.

''It's a nuisance'' and ''aggravating'' and ''an obstacle to proper opinion writing,'' said Ned E. Doucet Jr., chief judge of a Louisiana appeals court that divided over the issue this spring. He exchanged tartly conflicting decisions with another judge over whether the new approach was a violation of all they held dear.

Still, some lawyers and judges in Texas, Michigan, Delaware, California, Alaska and many other states are trying the new, cleaner look in legal documents by putting their citations at the bottom of the page. Legal citations can include references to the date, volume and page number of legal publications where precedents can be found.

Some converts say they are making the switch to democratize the law because the public is put off by strings of numbers that can make legal prose seem even more impenetrable than it is.

''We hear that all the time: 'Your opinions are oatmeal, they're not readable,' '' said a Michigan Court of Appeals judge, William C. Whitbeck. ''Judges see this as one way to respond.''

Most of the judges did not think of the idea themselves. They have an authority to cite on the question: Bryan A. Garner, a silver-penned legal writing specialist who is, among other things, the editor of Black's Law Dictionary, a volume that has ruled the world of legal language since 1891.

Mr. Garner, 42, has 12 books in print on language and legal writing. He revels in his role as the persnickety stylist for a linguistically challenged profession.

Based in Dallas, he travels the country lecturing to lawyers and judges about how to avoid being ''a workaday hack,'' as he put it to 150 New York lawyers the other day.

Mr. Garner's standing is such that a new book of his on American language was the subject of an occasionally playful critique by the novelist David Foster Wallace in Harper's Magazine in April. Mr. Wallace suggested that sticklers like Mr. Garner may very likely have been ''savagely and repeatedly Wedgied'' in their grammatical adolescences. It is a charge Mr. Garner smilingly denies to audiences of chortling lawyers.

Mr. Garner was recently named ''the E. B. White of legal prose'' by a San Francisco legal newspaper, The Recorder, and he has wide influence in the legal profession.

The power of Mr. Garner's name has lent credibility to the movement for ''citational footnotes.'' But the battle against entrenched tradition would not be possible, he said, were it not for the sheer logic of the idea of denuding legal prose of numbers.

In the legal profession, Mr. Garner said, ''we have certain conventions -- mind-numbing conventions -- that keep us from writing coherently, and one of those is that we have these constant hiccups.''

Nobody really likes hearing that his writing is full of hiccups like this.1 So Mr. Garner has made points.

Christopher W. Madel, a Minneapolis lawyer, changed the citation method he learned in law school after attending a Garner seminar. ''You're reading, you're understanding,'' Mr. Madel said. ''Then all of a sudden, there's an obscure 'Deposition, paragraph 48 at 7.' It makes no sense.''

Rodney Davis, a California appeals judge in Sacramento, was also persuaded. After hearing Mr. Garner in October, Associate Justice Davis tried taking all the numbers out of the text of his decisions.

He was stunned to see his words all by themselves. ''Once I dropped the citations down to the bottom of the page and looked at what was left, it became apparent that what was left read like legal code,'' he said. ''It would be very difficult to understand what I was saying.''

But plenty of judges and lawyers say Mr. Garner is a false prophet. Some say the footnote approach undermines respect for precedent.

In a 1999 article in a state bar journal, Mark E. Steiner, an assistant professor at the South Texas College of Law in Houston, warned fellow lawyers that Mr. Garner's ideas about putting citations in footnotes were catching on. Mr. Garner, he wrote, had a ''Rasputin-like influence'' over Texas judges.

Since then, Mr. Steiner said in an interview, his views about Mr. Garner's proposal have grown extreme.

Scott Turow, the best-selling writer and practicing lawyer, said the idea of putting citations in footnotes would only make legal briefs confusing. ''By the time your eyes get to the bottom of the page,'' Mr. Turow said, ''you forget whether you're looking for footnote 22 or 23.''

In San Francisco, Judge Joanne C. Parrilli, a state appeals judge, agreed. She said she tried the Garner approach but all the looking up and down at footnotes ''produced a certain amount of optical indigestion.''

On the Delaware Supreme Court, Justice Joseph T. Walsh is the lone holdout on a bench where the four other justices have been putting their citations in footnotes.

Justice Walsh explained his allegiance to the traditional method. Whatever his colleagues in Delaware may be doing, he said, Mr. Garner has yet to win a single convert on the highest court of the land.

''If it's good enough for the Supreme Court,'' Justice Walsh said, ''it's good enough for me.''

Informed over lunch of Justice Walsh's assertion, Mr. Garner displayed the understated feistiness that makes him a hit on the continuing legal education circuit.

''Although I have the highest respect for the Justices of the U.S. Supreme Court,'' he said, ''most of their opinions cannot be held up as literary models by any means.''

Mr. Garner's willingness to experiment no matter whose literary feelings are hurt is a characteristic of many of his followers.

''I love change,'' said Judge Billie Colombaro Woodard, the Louisiana judge who irked colleagues by writing opinions in the new style in April.

Chief Judge Doucet, who presides over the 12-judge court that hears appeals from a large area of southern Louisiana, agreed with the ruling Judge Woodard made in a workers' compensation case. But he refused to sign her opinion. He wrote his own, calling the use of footnotes ''contrary to this court's officially adopted citation rules.''

In an interview, Judge Doucet said a ''bunch of judges'' had been offended by the citational footnotes because that is not the way writing is done in rulings.

Judge Woodard acknowledged that her colleagues' reactions were less than effusive. ''I may be tarred and feathered and run out of town,'' she said. But she added that it was important for judges to experiment with ways of making legal opinions more accessible to ordinary people.

Many lawyers and judges agree that stripping the numbers out of their paragraphs might make them more readable.

But it might be wrong to suggest that anything will make people wade through court decisions, said J. Michael Luttig, a judge on the United States Court of Appeals for the Fourth Circuit in Richmond.

''It would make it more accessible, but the lay public still won't read legal opinions,'' Judge Luttig said, sounding a little forlorn. ''They're too complex, laborious and uninteresting to the lay public.''

Photo: Bryan A. Garner, a legal writing specialist, with an example of the language he seeks to change. (Mark Graham for The New York Times)(pg. 16)